Copyright is not about Copying

This comment was prepared for the Harvard Law Review “The New Private Law” Symposium (October 2011) as a response to Shyamkrishna Balganesh’s “The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying,” 125 Harvard Law Review 1664 (2012).

Balganesh’s article makes three inter-related claims: (1) copyright law has a bilateral structure mirroring the correlativity of a private law action; (2) the bilateral structure of copyright law is organized around the centrality in copyright law of the defendant’s obligation not to copy (that is, of the wrong of copying); (3) the internal structure of copyright law can accommodate external plural values, such that attentiveness to this internal structure is in the final analysis compatible with instrumentalist construals of copyright law.

My purpose in this comment is to develop a single point: because it misunderstands the bilateral structure it seeks to identify (Part I – “Bilaterality”), Balganesh’s paper misconstrues both the mischief or “wrong” that copyright law targets (Part II – “Wrong”), and the way in which the relation between copyright and other “values” is to be juridically understood (Part III – “Plurality”). The comment concludes with some remarks on the theory of the public domain in copyright, and on the role of copyright theory in the critique of existing copyright law (Part IV – “Private Law as Critical Theory”).

In essence, the comment points out that the fundamental import of private law concepts in copyright analysis is not to affirm the centrality of the wrong of copying, but – quite the contrary - to anchor analytically and normatively the irretrievable immanence of the public domain in copyright law.